January 23, 2005

John Mitchell sends word that the VSDA has filed the first brief on the merits in Grokster. Haven’t had a chance to read it yet, but that shouldn’t stop you:

“The first brief on the merits before the Supreme Court in MGM Studios v. Grokster was filed Friday, January 21, by the Video Software Dealers Association. The brief suggests that while p2p systems may be used for infringing and noninfringing uses, courts should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider, the freedom of speech for non-infringing uses (including by copyright owners who want p2p systems to be used to reach their audiences) or the freedom of competition (including first sale doctrine principles) of retailers and all intermediate software and services that make downloading possible. Bringing a retailer perspective, it strikes a balance of respect for copyright and respect for the limits the law places on those copyrights. The brief is available (in PDF) at http://interactionlaw.com/id5.html and at http://www.vsda.org/Resource.phx/vsda/government/positionstatements/grokster.htx“

Update: I’ve now given it a read, and, aside from attention to the distribution right, first sale, anti-trust, and First Amendment considerations, (all well-done and typical of Mitchell), I disagree with a whole lot of it. Here’s the concluding paragraph, which summarizes their argument:

“Because the courts below failed to inquire into any available remedies, they also failed to properly balance the relevant harms, leaving no room to consider the reasonableness of imposing a duty to help prevent infringement. The Ninth Circuit’s ruling should be reversed, and the case remanded for consideration of whether, without unduly burdening the First Amendment rights of authors who wish to do so to make their works available for reproduction by others using peer-to-peer systems, without unduly burdening the audience for – or intermediaries of – such authors, without enlarging the scope of Petitioners’ copyrights such that they may be leveraged into control over methods for the reproduction of works into copies and phonorecords, the distribution of lawfully made copies or phonorecords, the rendering of private performances of works, or the competing systems for compression, management,transmission, and copyright protection for those works, it may require Respondents to institute measures designed to limit the use of their software services for infringing purposes.”

Earlier, the brief argues that: “[T]he Betamax recorder’s core function was to make reproductions, and it would have been impossible to enjoin the manufacture and sale of a Betamax recorder used for infringing reproductions without also enjoining the manufacture and sale of Betamax recorders used for noninfringing reproductions. This distinction goes to the core question of whether the burden of enjoining the infringing reproduction comes at too high a cost because, to be effective, the injunction would necessarily have too broad a reach.” And later: “Sony had no occasion to consider this question [of redesigning the technology to limit infringing uses] because ‘a finding of contributory infringement would inevitably frustrate’ the desire of approving broadcasters to expand their audiences through time-shifting. 464 U.S. at 446 (emphasis added). There was simply no means of enjoining sales of the Betamax recorder to protect the copyrights of the complaining copyright owners without also suppressing the freedom of expression of copyright owners who desired wider audiences gained through timeshifting.”

Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me. In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here.

“Plaintiffs assert that the Sony-Betamax doctrine does not apply where a technology can be redesigned to eliminate infringing uses while preserving noninfringing uses. This very argument was flatly rejected in the Sony-Betamax case itself, where the movie studio plaintiffs (whose corporate descendants are Plaintiffs in this action) suggested that the infringing uses of the Betamax could be easily addressed by either 1) removal of the tuner or 2) incorporation of a “jamming system” that would require VCRs to respond to “no copy” markers embedded into television signals. See Universal, 480 F. Supp. at 462. Plaintiffs’ conception gets the analysis precisely backward—the Supreme Court’s opinion in Sony-Betamax makes it clear that, so long as a technology is capable of substantial noninfringing uses, its vendor is not liable under contributory infringement principles and thus has no obligation redesign the product to the copyright owners specification.”

Joe Hall discusses why, even if a court were to consider potential redesigns, a redesign may be difficult.